What is intellectual property protection?

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Dr Christopher Hartland at leading European IP firm, Potter Clarkson explains how businesses can protect their most valuable assets – their intellectual property.

Imagine leaving the door wide open to your business premises each night, where your most valuable assets would be vulnerable to theft. That’s exactly what many innovative businesses are doing every day by failing to protect their most creative products and processes.

Some businesses are so focused on maintaining their competitive edge, they fail to realise the full commercial benefit of their ideas, with many falling at the first hurdle in recognising whether or not their innovation can be protected.

Intellectual property (IP) is often the most valuable asset within a business and refers to creations of the mind, including inventions; designs; and symbols, names and images used in branding a business.  All of these products of your hard work can be protected by laws which enable individuals and companies to earn recognition and, potentially, financial benefit from what they invent or create. Depending on the nature of your innovation, the four main types of IP protection are patents, design rights, trade marks and copyright. Some innovations can be protected using all four, which creates an extremely powerful and valuable family of assets for a business.

Patents can provide protection for products, methods for making and using products and also new software developments.

People often think that an invention must be something entirely new, like inventing a flying car or a new source of power.  In reality many innovative and patentable ideas originate from solving an existing problem or improving the experience of the end user. By obtaining patent protection for such innovations, your business is able to prevent competitors from implementing the improvement with its associated advantages and thereby stealing market share.

Businesses often lose out on protecting such developments because they are not aware that they have a patent-worthy invention. Some indicators that patent protection might be available include modifications/improvements aimed at, for example, improving the efficiency, reducing the cost or reducing environmental impact of a process; improving the functionality of, or providing a cheaper way to make, a product; and improving the security of data or otherwise improving the user experience of software.

The key to successful patenting is to file early and keep details of your invention confidential prior to filing. Once you have a proof of concept, i.e. you understand the components which allow the underlying idea to work but don’t necessarily have every single detail of the final product, it is important to seek advice from an IP expert who will help you get a patent application on file. If you disclose your invention to anyone before filing the patent without getting a “Non-Disclosure Agreements” (NDA) signed, you will not be able to get a patent in the future.  Once you have filed a patent for any new features, you are free to commercialise the innovation secure in the knowledge that you have protected yourself against your competitors. If you don’t want to commercialise immediately, you will have bought yourself a period of time after filing a patent application to refine your invention ready for launch safe in the knowledge that the application will not be published to the public for 18 months.  

Design rights provide protection for the appearance of the whole or part of a product, including its shape, surface decoration and texture, amongst other features.

Design rights are particularly useful in fast-moving sectors, such as fashion, as they can exist automatically as “unregistered design rights”. These rights can also be registered, which typically gives you a longer duration of protection and are easier to enforce compared to unregistered design rights.

Unlike patents, the right time to seek registered design protection is when you know exactly what the end-product or surface decoration will look like, which might be much nearer the end of your design process. In the UK and EU, registered design protection can be established very quickly and at a relatively low cost. There are also considerable cost savings to be made if multiple designs are filed at the same time. Once filed there are usually no additional costs for obtaining protection in the UK and EU, and protection is granted for five years. After this period, you can decide whether it makes commercial sense to invest further and renew the design registrations.

Trade marks provide protection for names, logos, catchphrases and other features used to identify a business (and the products and services of that business).  When choosing a trade mark, you should consider, firstly, whether the mark is distinctive. This means that the mark is not commonplace, generic or descriptive for the goods/services that you want to protect.  Then you should conduct clearance searches, as this will tell you if the mark is available for you to register, and whether your use of the mark will infringe somebody else’s rights (very important). If it is not available, then choose another mark, as it does not make sense to invest in a mark that you cannot use or protect.

When you have your mark, it is a good idea to register it as soon as possible. Once the mark is registered you will be able to prevent others from using an identical or confusingly similar mark for identical/similar goods and services. Being on the trade mark register is a deterrent in itself, as third parties may avoid using or registering a similar mark.

While the cost of registration is not inexpensive, it is less than the cost of preparing evidence to substantiate unregistered rights, which is the only alternative to registered trade mark protection. Also, it will often be necessary to disclose sensitive business information, such as sales volumes/turnover and advertising expenditure in order to prove that you have unregistered rights in the mark. 

A final consideration is overseas trade mark protection. If you manufacture or sell your goods outside of the UK, then you should seek to protect the mark in those territories as well. Unlike in the UK, many countries work on a so-called first to file basis and, therefore, there are limited rights (if any) in unregistered marks, in those countries. There have been numerous examples of companies being sued for trade mark infringement, for the use of their own unregistered trade marks, where a third party has opportunistically registered an identical mark for identical goods.

Copyright provides protection for the originator or author of a literary, dramatic, artistic or musical work and protects the expression of an idea and not the idea itself. For example, copyright would protect a fantasy author’s book, but it would not protect the idea of a world filled with elves, dragons and magic. There is no official register in the UK for copyright, but it is a good idea to use the copyright symbol © to notify third parties of your rights in a work and to keep accurate records of when you create a protectable work.